Explaining the motives of Palestinian suicide bombers Mr Gardner stated: "Theirs is essentially a territorial fight to liberate their land from illegal occupation … people should understand that Israel is illegally occupying Arab Land, it’s against UN resolutions and the transportation of a civilian population into occupied territory and then colonising it is illegal under the Geneva Convention."

This statement contains five tendentious opinions, which Mr Gardner presented as undisputed fact: 1) Palestinian terrorists merely wish to “liberate” occupied territory, 2) the territories are “Palestinian” or “Arab land”, 3) Israel’s presence in the territories is “illegal” 4) Israel’s presence in the territories is “against UN resolutions” and 5) Israeli communities in the territories are “illegal under the Geneva Convention”.

This complaint addresses each of Mr Gardner’s claims individually:

.

1) They are engaged in “a territorial fight” to “liberate” ‘occupied’ territory.

It is misleading, inaccurate and patently biased to claim that Palestinian armed groups are merely fighting for the “occupied” territories.

In fact Hamas, Islamic Jihad, Hezbollah and PLO factions including the PFLP, all openly call for the complete liquidation of the State of Israel. Moreover, the Hamas covenant openly calls for the indiscriminate murder of all Jews [1].

Furthermore, senior figures in Fatah and the PA have declared their ultimate goal to be the elimination of the State of Israel [2].

Despite a vote in the PNC to change the PLO Charter (calling for Israel’s destruction) the constitution remains unchanged.

Many commentators point to Yasser Arafats rejection of Israel’s offer to withdraw from Gaza and a net 100% of the West Bank (3% land swap) at the Taba Conference, in Jan 01, and his refusal to accept any agreement which does not allow a “right of return” for Palestinian Arabs, as a sign that the PLO is still committed to overrunning Israel in stages (“Stages Plan”, 1974 [2]). The final stage of this plan being the transfer to Israel of 4 million Arabs, who claim to be descendents of Palestinians who left Israel during the 1948 Arab-Israel War, and the overthrow of the government of Israel.

As Fatah Higher Committee Member, Ziad al-Rajub explained, “The political platform of Fatah, today, is the Stages Plan, that was forced on the PLO leadership after the defeats that the Arabs suffered, one after the other...The sons of Palestine, and Fatah among them, are not permitted to accept Israel as a permanent state on the soil of Palestine." (Akhbar al-Halil, 24.1.01)

It is clearly unacceptable for a BBC correspondent to misinform the audience that the objective of Palestinian armed groups - whose modus operandi is the deliberate killing of innocent civilians - is limited to the ‘liberation’ of the disputed territories, ignoring the wealth of evidence contradicting this view.

2) The Disputed Territories are “Their (Palestinian’s) land” and “Arab land” which Palestinian suicide bombers are attempting to “liberate”.

It is factually inaccurate to attribute ownership of the disputed territories to the Palestinians:

The Palestinians have never had a sovereign state and there are no legally binding treaties or agreements, which attribute sovereignty of the disputed territories to the Palestinians.

The previous unlawful occupiers of the West Bank and Gaza were Jordan and Egypt respectively, which lost the territories to Israel following a war they initiated in June 1967.

The last international legal allocation of territory that includes the West Bank and Gaza Strip occurred with the 1922 League of Nations Mandate for Palestine, which recognised Jewish national rights in the whole of the Mandated territory and these rights are preserved under Article 80 of the United Nations Charter [3].

Hence, it is inaccurate and explicitly biased to attribute ownership of the disputed territories to the Palestinians, and/or to portray this as undisputed fact.

This is an opinion, which Mr Gardner appears particularly keen to promote e.g. “The ongoing illegal occupation by Israel of large amounts of Palestinian land is one of the biggest root causes of Muslim anger and vastly complicates the war on terror.” Frank Gardner, 4.12.02, BBC Website [4].

To describe Israel’s presence in the territories as “illegal” is patently biased. An international court has never ruled on this and there are cogent legal arguments supporting the view that Israel’s presence in the territories is legal under international law [3].

In June 1967, Israel entered the West Bank, after repeated Jordanian artillery fire and ground movements across the previous armistice lines; additionally, Iraqi forces crossed Jordanian territory and were poised to enter the West Bank. Since, Israel was acting in self-defence, and Jordan and Egypt were the prior and unlawful holders of that territory, Israel’s presence in the territories does not contravene international law.

As Elihu Lauterpacht, professor of law at Cambridge University, explained, “there is "no competing valid sovereignty" over those areas, including eastern Jerusalem, and “there is no illegal element in Israel's occupation of them” [5].

He stated that Israel had gained those areas through “rightful use of not-disproportionate force” to repel “Egyptian and Jordanian aggression”. This, he said, was a “legitimate reaction to the unlawful breach of the General Armistice Agreements of 1949” [ibid.].

Prof. Steven Schwebel, a judge of the International Court of Justice at the Hague, summed up the issue as follows:

Having regard to the consideration that. . . Israel [acted] defensively in 1948 and 1967 . . . and her Arab neighbours . . . [acted] aggressively in 1948 and 1967 . . . Israel has better title in the territory that was Palestine, including the whole of Jerusalem, than do Jordan and Egypt." [6]

Regarding UNSCR’s, none require an Israeli withdraw from any of the disputed territories in the absence of security and peace with its Arab neighbours (see point “4” below). In any event UNSCR’s do not constitute a legal judgement under international law.

Irrespective of the differing views on this, Mr Gardner cannot claim to be impartial on one hand and then claim Israel’s occupation is indisputably illegal on the other.

The BBC would not permit its correspondents to state categorically that the War on Iraq was legal or illegal hence it is totally unacceptable for Mr Gardner and other correspondents, to make such tendentious claims in respect of Israel’s presence in the West Bank and Gaza.

4) “… it’s against UN Resolutions”.

This is factually inaccurate.

UNSCR’s 242 and 338 require (emphasis added)…

“the application of both the following principles: a. Withdrawal of Israeli forces from territories occupied in the recent conflict and, b. Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”

Hence, the resolutions require Israel withdraw only from “territories” (not all territories), to “secure and recognised boundaries” (not the 1948 armistice line) and only providing the Arabs end their conflict with Israel and recognise her right to exist (i.e. no withdrawal without peace and security).

These Chapter VI resolutions are ‘pacific’ (requiring a negotiating process), non-binding and explicitly do not require Israel withdraw unconditionally. The UNSCRs clearly accept that the occupation itself does not violate international law.

As Professor Eugene Rostow (former dean of Yale Law School and US Undersecretary of State) explained, “Resolution 242, which… I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until "a just and lasting peace in the Middle East" is achieved.” (The New Republic, Oct. 1991).

Lord Caradon, British Ambassador to the UN and chief architect of UNSCR 242, stated, “It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artificial. After all, they were just the places where the soldiers of each side happened to be on the day the fighting stopped in 1948. They were just armistice lines. That's why we didn't demand that the Israelis return to them.” [7].

It is clearly unacceptable for a BBC correspondent to make the false claim that Israel’s presence in the territories is violating UN resolutions.

5) “The transportation of a civilian population into occupied territory and then colonising it is illegal under the Geneva Convention”.

Again, Mr Gardner presented a controversial view as undisputed fact.

Firstly, the government of Israel has never “transported” or “transferred” a civilian population into occupied territory.

Secondly, the relevant section, article 49 of the Fourth Geneva Convention (1949), prohibits "individual or mass forcible transfers" and obliges the occupying power not to "deport or transfer parts of its own civilian population" to territories under its control i.e. it prohibits active or forcible transfer of civilians - something the government of Israel has never done.

The ICRC commentary on this article claimed that it “is intended to prevent the practice adopted in the Second War by certain powers” i.e. the sort of forced deportations carried out by the Nazis.

Nowhere in article 49 of the Fourth Geneva Convention, nor in the ICRC commentary on it, does it instruct the occupying power to prevent the voluntary, legal, settlement of its civilian population in territories under its control.

Thirdly, Clause 2 of the Fourth Geneva Convention states, "The present convention shall apply to cases of partial or total occupation of the territory of a High Contracting Party." Since, prior to the 1967 War, the West Bank and Gaza were not territories of a High Contracting Party (they had been illegally annexed by Jordan and Egypt in 1949) the convention does not apply to these territories.

As Professor Rostow stated, “the Jewish settlers in the West Bank are volunteers. They have not been "deported" or "transferred" by the government of Israel, and their movement involves none of the atrocious purposes or harmful effects on the existing population the Geneva Convention was designed to prevent. Furthermore, the Convention applies only to acts by one signatory "carried out on the territory of another." The West Bank is not the territory of a signatory power, but an unallocated part of the British Mandate.” (The New Republic, April, 1990).

Fourthly, Jewish communities have existed in Judea and Samaria for many centuries and yet more Israeli communities developed there during the British Mandate period. Jewish residents were massacred or forced to flee from these areas during the Arab riots of the 1920’s, 30’s and 40’s and during the 1948 Arab-Israel War. Hence it is natural for Jews to wish return to re-build communities there, just as Palestinians have done.

Whilst opposing settlements on political grounds, the US Government does not regard them as illegal. As then US Secretary of State Madelaine Albright explained, “It's legal (the building of settlements). But I think that, in this kind of an atmosphere, it's very important not to take actions that are viewed by the other side as creating more difficulties.” NBCTV, New York, 1.10.97.

UNSCR 465 condemns settlement activity on “Palestinian and other Arab territories”. However, the Israeli communities sanctioned by the government, have not been built on Palestinian or Arab territory but land belonging to pre-existing Jewish communities or land that was un-owned (that is, controlled by the previous unlawful occupier, Jordan/Egypt and had no private owner) or land purchased legally from established owners. And, as stated above, the last international legal allocation of this territory (League of Nations Mandate on Palestine, 1922) recognised Jewish national rights in the whole of the Mandated territory, rights that are preserved under Article 80 of the United Nations Charter.

In any event, UNSCR’s do not constitute a legal ruling. An international court has never ruled on the legality or otherwise of settlements in the territories or whether they contravene the Geneva Convention. Hence, it is patently biased for a BBC correspondent to unequivocally accuse Israel of a breach of the Convention in the absence of a legal judgement.

It is false and grossly insensitive for a BBC correspondent to describe this legal, voluntary re-settlement, as Nazi style ‘transportations’ and a violation of the Geneva Convention.

Mr Gardner’s condemnation of suicide bombing

It is noted that, during the phone in programme, Mr Gardner condemned suicide bombing. However, condemning terrorism but endorsing their motives does not denote impartiality.

This is, in effect, the public relations position of the Palestinian Authority. For example, Saeb Erakat regularly condemns Palestinian terrorism before a Western audience - even when Chairman Arafat’s Al-Aska Martyrs Brigade has declared responsibility for the attack (see Mr Erakat’s BBC interview following the Fatah atrocity on the morning of Sunday 22nd January 2004). Mr Erakat invariably uses the opportunity to blame Israeli policies and its “illegal occupation” for inducing the violence, exactly as Mr Gardner did.

Whether or not Mr Gardner condemns terrorism, there can be no justification for him presenting Israeli actions as being the root cause of the conflict, without any attempt to present valid Israeli counter arguments.

Summary

Mr Gardner claimed that the aim of Palestinian fighters/suicide bombers is merely to “liberate” the West Bank and Gaza and that Israel’s occupation of the West Bank and Gaza is illegal, in breach of UN resolutions and the Geneva Convention. He totally disregarded valid counter arguments.

He contravened paragraph 2.2 of the BBC’s Producer’s Guidelines as his claims were inaccurate regarding ownership of the territories, the legality of the occupation and the applicability of UN resolutions. His claims concerning the objectives of Palestinian terrorists were neither perceptive nor well informed and he failed to give due weight to differing views, e.g. on the legality of Israeli communities in the territories.

Mr Gardner conveyed highly contentious, anti-Israel opinions on the radio programme, and presented them as if they were undisputed fact. He manifestly failed to offer the audience a balanced account, which would have enabled them to form their own views.

Conclusions

We doubt Mr Gardner’s ability to make critical distinctions and present a balanced view on the Arab-Israel conflict and thus consider it inappropriate for him to report for the BBC on this issue.

Unjust policies and human rights abuses by both sides must be reported. But these reports must be accurate, balanced and well informed, using language, which is precise, dispassionate and circumspect. The BBC should very carefully consider the extent to which its current approach is inflaming hostility, hatred and violence against Israel and the world Jewish community and should take immediate and effective action to rectify the situation.

Recommendations

In view of aspects of BBC reporting highlighted by this issue, it is recommended that the BBC take the following action:

A) Issue a full retraction of, and public apology for, Mr Gardner’s comments.

4. Israel’s occupation of the territories is in breach of UN resolutions

5. Israeli communities in the disputed territories are in violation of the Geneva Convention.

To this end all examples of these claims made by BBC reporters on the BBC website, should be removed forthwith.

C) Take immediate effective action to prevent the sort of recurrent, anti-Israel bias in BBC news, highlighted by the reports of Trevor Asserson (2002) and Jonathan Hantman (2003) [8].

NOTES

[1] The Covenant of Hamas: "The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, would not do that because it is one of the trees of the Jews." (related by al-Bukhari and Moslem).
http://www.hamasonline.com/indexx.php?page=Hamas/convenant/hamas_convenant2[2] Salim Za'anum, Chairman of the Palestinian National Council “the PLO Covenant (calling for Israel's destruction) remains in force and was never changed” (al-Hayat al-Jadida, 3rd Feb 2001).

Othman Abu Gharbia, head of the Political Guidance Apparatus of the Palestinian Authority (directly under Yasser Arafat) "We remain tied to our overall goal at the present stage, of an independent Palestinian state whose capital is Jerusalem and the right of return. This goal is not the end of the march from the viewpoint of the Palestinian people, the dream of our nation will not stop. This goal is only one stage, the second stage is the establishment of a democratic state on all parts of Palestine” (al-Ra´I, June 2001).

Sakher Habash (adviser to Arafat) “At this stage it is imperative that we realize our temporary political goal continued in the establishment of an independent Palestinian state whose capital is Jerusalem within the 4 June borders, and this will lead to a democratic solution of building democratic Palestine on all the national land. I believe that the time is not appropriate to speak about the revolution to liberate all of the land....The Palestinian state whatever it will be will constitute of beginning of the dismantling of the Zionist enterprise" (al-Hayat al-Jadida, Nov. 17, 2000).

Stages Plan of the PLO (1974) "once it is established, the Palestinian National Authority will strive to achieve a union of the confrontation countries, with the aim of completing the liberation of all Palestinian Territory."

[3] "[Although] the Mandate distinguished between Eastern and Western Palestine . . . it did not distinguish between the region of Judea and Samaria and the rest of Western Palestine. No event and no armistice or other international agreement has terminated the Mandate-recognized rights of the Jewish people, including settlement rights, in those portions of the Mandate territory that have yet to come under the sovereignty of any state. Those rights did not expire upon the demise of the League of Nations, the creation of the United Nations, or the UN General Assembly's adoption of the 1947 UN Special Committee on Palestine plan for Western Palestine." Douglas Feith, former Deputy Assistant Secretary of Defence and Middle East specialist on the White House National Security Council (Reagan Administration). http://www.israelbehindthenews.com/Archives/Aug-30-01.htm“The mandate gave the Jews the right to establish a "National Home" in Palestine and granted them the right to make close settlements without prejudice to 'the civil rights and religious rights of the existing non-Jewish communities in Palestine.' The term 'civil rights' in this sentence is carefully distinguished from 'political rights.'

The right of the Jewish people to settle in Palestine has never been terminated for the West Bank . . . The only way which the mandate right of settlement in the West Bank can be brought to an end is through the annexation of the area by an existing state or by the creation of a new one." Eugene Rostow, Professor of International Law and former US Deputy Secretary of State.
http://www.israelbehindthenews.com/Archives/Aug-30-01.htm

This complaint to the Director of News concerned comments by the BBC s Security Correspondent, Frank Gardner, during the Julian Worricker programme on BBC Radio Five Live. These comments concerned the correspondent s interpretation of the Palestinian position and of UN resolutions.

The complaint related to the following two comments by Frank Gardner: Theirs [ the Palestinians ] is essentially a territorial fight to liberate their land from illegal occupation people should understand that Israel is illegally occupying Arab land. It s against UN resolutions, and the transportation of a civilian population into occupied territory and then colonising it is illegal under the Geneva Convention.

Later: The European Union has tried to be quite robust. It also tries to be as even-handed as it can. I don t think America is even-handed in this Israel is supported entirely or heavily, , financially, in terms of a military aid package which runs to billions of dollars a year.

The complainant maintained that these comments were unfair, inaccurate, subjective, imbalanced and misleading. In particular he complained that: The comment concerning an illegal occupation was explicitly biased in favour of the Palestinians. The complainant maintained that the legality of Israel s presence in the West Bank and Gaza had never been determined by an international court. The portrayal of Palestinian terrorism as a territorial fight to liberate the West Bank and Gaza was factually inaccurate and biased against Israel. The complainant maintained there was substantial evidence to show that Palestinian armed groups were fighting to eliminate the State of Israel and not to liberate the West Bank and Gaza. It was factually inaccurate to state that the Palestinians were fighting for their land as there had never been a Palestinian state and the territorial borders of such a state had yet to be determined by negotiated settlement. It was explicitly biased for Frank Gardner to say that Israel s presence in the territories was against UN resolutions. The complainant pointed to the fact that UN Security Council Resolutions (UNSCRs) 242 and 338 required Israel to withdraw only from territories to secure and recognised boundaries , and only providing the Arabs ended their conflict with Israel and recognised her right to exist (which most Arab states had declined to do) . Frank Gardner had wrongly asserted that the transportation of a civilian population [ ie Israeli settlers ] into occupied territory and then colonising it is illegal under the Geneva Convention.

The complainant maintained that (1) the West Bank and Gaza did not constitute another country occupied by Israel under international law and hence the Israeli population could legally move there; (2) Israeli settlers were volunteers and nowhere did the Geneva Convention forbid the voluntary resettlement of a civilian population to territories under an occupier s control; (3) Jewish communities had existed in these areas for many centuries. It was inaccurate and biased to assert, as Frank Gardner did, that the EU was even-handed in its approach to the Middle East, while America was not. The complainant said that supporters of Israel would argue that the EU was a distinctly anti-Israeli organisation, while America has, for example, given comparable amounts of military aid to Jordan, Egypt and Israel and had expressed opposition to the natural expansion of Israeli communities in the Disputed Territories and to Israel s anti-terrorism fence.

In his response, the Director of News pointed out that Frank Gardner had reported from the Middle East for many years, and described his position on these matters as neutral. To that end, he had made it explicitly clear during the programme, and on more than one occasion, that he condemned suicide bombings unreservedly, a viewpoint which inevitably drew accusations from some of the more extreme sections of the Muslim world that he was anti-Arab.

The letter then summarised the explanation given by Frank Gardner for the view that the Palestinians were engaged in a territorial fight over land which was illegally occupied , on the basis of UNSCRs 465 (1980) , 242 (1967) and 338 (1973) , and also referring to the statement of the Conference of High Contracting Parties to the Fourth Geneva Convention ( July 1999) concerning the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem.

On the issue of the movement of the civilian population, Frank Gardner apologised for an unintentional slip of the tongue. He was, in fact, referring to the last clause of Article 49 rather than the one suggested by the complainant, and intended to say transfer rather than transportation . This referred to the relevant clause of the Fourth Geneva Convention which states that the occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies .

In relation to the role of the EU and the United States, it was noted that there was criticism in some quarters that the EU was anti-Israel though, equally, this criticism came mainly from supporters of Israel. The response maintained that Frank Gardner was aiming to give a professional, impartial judgement.

The complainant wrote to the Director-General raising a number of objections to the reply from the Director of News. Simon Milner, the Secretary, answered on behalf of the Director-General, referring the complaint to the Governors Programme Complaints Committee.

The Committee s decision: The Committee gave initial consideration to this appeal at its meeting in April 2004, and further consideration at its meeting in May.

Having listened to the item, and reviewed the correspondence and editorial advice relating to this appeal, the Committee also discussed the issues raised by appeal with Frank Gardner ( Security Correspondent) and Mark Damazer ( Deputy Director, BBC News) .

The Committee was satisfied overall that Frank Gardner s contribution to the phone-in had been appropriately handled. In particular the Committee noted that: Frank Gardner was a highly experienced correspondent who had been invited to contribute his expert opinion to the phone-in debate following comments by Liberal Democrat MP Jenny Tonge to the effect that she understood the actions of Palestinian suicide bombers, and that if she had to live in that situation she might just consider becoming one myself . Frank Gardner had already apologised for his inadvertent reference to the transportation rather than transfer of the civilian population. The Committee was satisfied that no further comment was required on this matter.

In relation to the reference to Israel illegally occupying the territories, the Committee recognised that this issue was complex, particularly as the terms of UN resolutions were frequently vague and ambiguous. It observed that many in the international community regarded the Israeli occupation as illegal, including the call by the UN Secretary-General Kofi Annan for Israel to end its illegal occupation (Reuters report from UN headquarters, New York, 12 March 2002) . The Committee noted further that actions relating to the settlement of the Occupied Territories were illegal under the Fourth Geneva Convention, and that the comments by Frank Gardner were closely related to observations about the settlements. The Committee was satisfied that, in this context, the comments did not represent a breach of BBC guidelines on accuracy. Although the complainant objected to Frank Gardner s references to Palestinian land and Arab land , these terms appropriately reflected the language of UN resolutions. Both UNSCR 446 (1979) and UNSCR 465 (1980) referred to Palestinian and other Arab territories occupied since 1967 . There was a body of opinion which claimed the Palestinian aim was the eradication of Israel, but that Frank Gardner had qualified his observation about the territorial aims by saying it was essentially a territorial fight. Frank Gardner had adequately qualified his comments in relation to the EU by saying that it had tried to be even-handed in its approach.